Arrowhead Development Co. v. Livingston County Road Com'n, Docket No. 63742

• Decision Date: 28 June 1982
• Docket Number: Docket No. 63742,No. 6,6
• Citation: 413 Mich. 505,322 N.W.2d 702
• Parties: ARROWHEAD DEVELOPMENT COMPANY, Plaintiff-Appellant, v. LIVINGSTON COUNTY ROAD COMMISSION, Defendant-Appellee. Cal.
• Court: Michigan Supreme Court

Page 702

322 N.W.2d 702 413 Mich. 505 ARROWHEAD DEVELOPMENT COMPANY, Plaintiff-Appellant,
v.
LIVINGSTON COUNTY ROAD COMMISSION, Defendant-Appellee. Docket No. 63742.
Cal. No. 6. Supreme Court of Michigan. Argued Oct. 7, 1980.
Decided June 28, 1982.

Page 703

[413 Mich. 507] Michael J. McGivney, Brighton, for plaintiff-appellant.

Laird & Grace by John R. Laird, and Sheila Schwartz, Ann Arbor, for defendant-appellee.

RYAN, Justice.

Arrowhead Development Company sought to develop 140 acres of property in Livingston County into a residential subdivision. A portion of the tract to be subdivided lies along Chilson Road, a county road, and abuts Chilson at two locations, one along the southern boundary of the

Page 704

[413 Mich. 508] subdivision and the other along the western boundary. ¹

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[413 Mich. 509] When the proposed plat was submitted to the Livingston County Road Commission

Page 705

for approval, it provided for two access roads into the subdivision, both along the Chilson Road southern boundary of the tract: Pawnee Trail and Kiowa Trail. For purposes of safety, reduced road grades and improved road layout, the commission required that a third access road be added and directed that Navajo Trail, which was originally proposed as a cul-de-sac, be opened to create an intersection with Chilson Road. Because a steep hill crested at a point on Chilson Road somewhat southeast of the newly proposed intersection, a hazardous condition in the nature of a sight obstruction was created, particularly for traffic entering and exiting the subdivision at Navajo. Consequently, as a further condition of approval of the plat, the commission required that the developer remove the hill and perform related regrading and resurfacing work on Chilson Road, although the site was located entirely outside the proposed subdivision and no lots are platted along the road at that point.

Instead of making the improvement immediately, appellant posted a performance bond whereupon the subdivision plat was approved by the commission and appellant proceeded with the development.

Sometime later, the commission notified appellant that unless it took action immediately to eliminate the hill and regrade Chilson Road, the commission would remove the hazard itself and seek reimbursement under the terms of the bond. That prompted appellant to file suit to enjoin the commission both from requiring that the Navajo Trail cul-de-sac be opened and from requiring that appellant make the improvements on Chilson Road.

[413 Mich. 510] The trial court upheld the validity of both requirements. Appellant appealed only the determination that the commission had the authority to require appellant to make the improvements on Chilson Road.

The Court of Appeals affirmed the trial court's decision ² and plaintiff is before us on an appeal from that judgment.

The case presents two related issues:

1) Whether a county road commission has authority to require a subdivision developer to make improvements on a county road located entirely outside the platted subdivision as a condition precedent to plat approval and, if so,

2) Whether the exercise of that authority in this instance is constitutional under U.S.Const., Am. XIV and Const.1963, art. 1, Sec. 17 which prohibit a taking of property without due process of law.

We answer the first question in the negative and thus find it unnecessary to address the second question.

I

Arrowhead contends that as a matter of law the commission lacks the power to require it to make the improvement demanded in this case because the site involved is a county road not within the subdivision. The commission counters that on the basis of Const.1963, art. 7, Sec. 34, the county road law, ³ and the Michigan Subdivision Control Act of 1967, ⁴ the commission must be deemed to have the [413 Mich. 511] power to require Arrowhead to pay for the off-site improvement to Chilson Road.

We disagree with the commission's interpretation of the state constitutional provisions and the cited statutory authority and conclude that it is without authority to condition approval of the proposed plat upon removal of the Chilson Road hill by Arrowhead.

A

Article 7, Sec. 34 of the Michigan Constitution of 1963 provides:

"The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to...